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Neil H. Jaffee, Assistant Federal Public Defender, argued
the cause for appellant Antone R. White. With him on the
briefs was A.J. Kramer, Federal Public Defender.
Diane S. Lepley, appointed by the court, argued the cause
and filed the briefs for appellant Ronald R. Hughes.
Joseph J. Gigliotti, appointed by the court, argued the
cause and filed the briefs for appellant Eric A. Hicks.
John A. Briley, Jr., appointed by the court, argued the
cause and filed the briefs for appellant Dan R. Hutchinson.
All counsel for appellants were also on the joint briefs.
Geoffrey G. Bestor and Steven E. Rindner, Assistant U.S.
Attorneys, argued the cause for appellee. With them on the
brief were Eric H. Holder, Jr., U.S. Attorney, John R.
Fisher, Leanne Shaltis Fallin, and Michael L. Volkov, Assis-
tant U.S. Attorneys. Elizabeth Trosman, Assistant U.S.
Attorney, entered an appearance.
Before: Williams, Henderson and Tatel, Circuit Judges.
Opinion for the court filed Per Curiam .
Per Curiam 1 : Four appellants, members of the First
Street Crew, challenge their convictions and sentences for
drug conspiracy and related crimes. We affirm.
Viewing the facts in the light most favorable to the Govern-
ment, see, e.g., United States v. Rawlings, 73 F.3d 1145, 1146
(D.C. Cir. 1996), the evidence presented at trial established
the following: Antone White and several friends, including
Eric Hicks and Dan Hutchinson, sold crack cocaine in the
area of First and Thomas Streets, N.W., from early 1988 until
March 1993. Although White initially sold small amounts of
"weight," or large amounts of crack, and fronting his cohorts
smaller amounts of cocaine to sell for him. Ronald Hughes
and Derrick Ballard began working with White in 1990.
Together, White and his partners were known as the "First
Street Crew."
Members of the First Street Crew worked together when
they sold drugs. They referred customers to each other,
watched out for each other to protect against police or
robbers, changed money with each other to thwart attempts
to trace marked bills, used common stash areas, and cut up
drugs at the same house. Although White orchestrated the
group's activities, Hicks took charge when, as the prosecution
put it, White was "out of the neighborhood," i.e., in prison.
The Crew's drug operation and violent activities, along with
the youth of the Crew's members_few were over twenty-five
years old, and White employed several juveniles to hold and
run drugs for him_caught the attention of the United States
Attorney's office and the Metropolitan Police Department.
In August 1992, an acquaintance of White, Arvell Williams,
walked into an Assistant United States Attorney's office and
offered his help in investigating the First Street Crew. Ser-
geant Dale Sutherland, an undercover officer with the Metro-
politan Police Department, became Williams's primary con-
tact. Sutherland and Williams arranged six drug purchases
from members of the First Street Crew, on August 14, 19,
and 21, September 3 and 8, and October 2, 1992. On several
of those occasions, Williams wore a concealed tape recording
device called a "NAGRA." Williams bought crack from
Hutchinson, White, and other members of the First Street
Crew.
Some time after the September 8 transaction, White began
suspecting that Williams was "hot," i.e., that he was working
for the police, and that Sutherland was an undercover officer.
Williams made his last purchase from White on October 2.
Returning to the undercover vehicle, Williams, visibly shaken,
told one police officer that White would not talk to him.
On October 5, Williams and Officer Sutherland arranged to
purchase crack cocaine from Hicks and Derrick Ballard. The
next afternoon, while waiting for Ballard in the passenger
seat of Ballard's car, Williams was shot sixteen times at close
range by two armed men who ran out of a nearby alley.
Williams was pronounced dead on the scene. Several wit-
nesses identified the shooters as White and Hughes.
In March 1993, White, Hicks, Hughes, Hutchinson, and
Ballard were charged in a twenty-six-count indictment with
conspiracy to distribute cocaine base, RICO conspiracy, and
numerous individual counts of drug distribution. White and
Hicks were charged with engaging in a continuing criminal
enterprise (CCE). Hicks was also charged with using or
carrying a firearm in relation to a drug trafficking crime, a
violation of 18 U.S.C. § 924(c) (Supp. 1996). White and
Hughes were charged with the murder of Arvell Williams in
furtherance of a CCE, first-degree murder while armed,
using and carrying a firearm in relation to a drug trafficking
crime, and possession of a firearm during a crime of violence.
Prior to trial, the prosecution filed a motion to admit out-of-
court statements made by Arvell Williams during debriefing
sessions and before and after drug transactions, arguing that
since defendants had "procured Williams's unavailability"_
that is, killed him_they had waived their confrontation rights
and hearsay objections to Williams's statements. At a mo-
tions hearing in October 1993, the prosecution presented,
through a police detective, the testimony of several eyewit-
nesses to the shooting. Finding that the Government had
proved by a preponderance of the evidence that Hughes,
White, and Ballard conspired to murder Williams, the court
ruled that those three defendants had waived their confronta-
tion rights and hearsay objections to Williams's statements.
United States v. White, 838 F. Supp. 618, 624 (D.D.C. 1993).
The court ruled that none of Williams's statements could be
used against Hicks and Hutchinson, who, the prosecution
eventually conceded, had not waived their confrontation
rights. Id. & n.8.
After the district court granted the Government's motion to
admit Williams's statements against White, Hughes, and Bal-
lard, Hicks and Hutchinson filed motions to sever their trial
from the others. Denying the motion to sever, the trial court
found the Government's offer to redact any of Williams's
statements that mentioned Hicks, Hutchinson, the "Crew," or
the "First Street Crew," along with its own intention to give a
limiting instruction on the use of Williams's testimony, suffi-
cient to prevent prejudice to Hicks and Hutchinson.
Trial began on November 8, 1993. In late December,
Derrick Ballard pled guilty to drug conspiracy and assault
charges. In late January 1994, the Government rested its
case. Following defendants' motions for judgment of acquit-
tal, the district court dismissed the RICO conspiracy charges
against Hutchinson and Hughes.
On January 28, 1994, the case went to the jury. Three
weeks later, the jury returned verdicts on some of the
charges in the indictment, finding White, Hughes, Hicks and
Hutchinson guilty of conspiracy to distribute crack cocaine,
White and Hicks guilty of RICO conspiracy, and all four
defendants guilty of individual counts of distribution. The
jury acquitted Hicks of the section 924(c) charge. Continuing
its deliberations on the remaining charges, the jury was
unable to reach consensus. In early March, the district court
declared a mistrial on the remaining counts of the indictment.
Several weeks later, defendants filed a motion for a new
trial, relying on an affidavit from the jury foreperson stating
that "[i]n the course of our jury deliberations," one of the
jurors had told the others that she had spoken with a
Government witness's sister, who had told her that a potential
Government witness had been killed during the trial and that
"Antone White and his group were responsible for her death."
Joint Mot. For New Trial (Mar. 31, 1994), Attach. 1. In
opposition, the prosecution submitted affidavits from the gov-
ernment witness's four sisters stating that they knew no
jurors nor anything about the murder of another government
witness along with a second affidavit from the foreperson
attesting that the juror's statement came in late February,
court denied defendants' new trial motion.
White was sentenced to life in prison on the drug conspira-
cy count, to run concurrently with a life sentence on the
RICO conspiracy count and with 240- and 480-month sen-
tences on individual drug distribution and aiding and abetting
counts. Hicks received the same sentence. Hughes received
a life sentence on the drug conspiracy count, to run concur-
rently with 240-month sentences on each of three drug
distribution counts. Hutchinson was sentenced to 300 months
in prison on the drug conspiracy count, to run concurrently
with 300-month sentences on each of two drug distribution
counts.
A. Admission of Out-of-Court Statements
The defendants make a number of challenges to the admis-
sion of the out-of-court statements of Arvell Williams, the
potential witness whose absence defendants procured by mur-
der. They claim that the government should have been
required to prove the misconduct_a curiously bloodless term,
in this context_that led to the loss of their Sixth Amendment
confrontation rights by clear and convincing evidence, rather
than merely by a preponderance. They also argue that, even
if the trial court correctly resolved the confrontation clause
issue, it should have excluded the hearsay as inherently
unreliable. Finally, they object to the court's exclusive reli-
ance on hearsay evidence in its initial finding that defendants
had dispatched Williams, and to the sequence the court
followed in determining admissibility.
The Sixth Amendment provides that "[i]n all criminal pros-
ecutions, the accused shall enjoy the right ... to be confront-
ed with the witnesses against him." Even though the right of
confrontation is both constitutional and critical to the integri-
ty of the fact-finding process, see California v. Green, 399
U.S. 149, 158 (1970), the defendant may lose it through
misconduct. Illinois v. Allen, 397 U.S. 337, 343 (1970) (find-
disruptive behavior and had to be removed from courtroom).
It is hard to imagine a form of misconduct more extreme than
the murder of a potential witness. Simple equity supports a
forfeiture principle, as does a common sense attention to the
need for fit incentives. The defendant who has removed an
adverse witness is in a weak position to complain about losing
the chance to cross-examine him. And where a defendant has
silenced a witness through the use of threats, violence or
murder, admission of the victim's prior statements at least
partially offsets the perpetrator's rewards for his misconduct.
We have no hesitation in finding, in league with all circuits to
have considered the matter, that a defendant who wrongfully
procures the absence of a witness or potential witness may
not assert confrontation rights as to that witness. See Unit-
ed States v. Houlihan, 92 F.3d 1271, 1279 (1st Cir. 1996)
(murder); United States v. Aguiar, 975 F.2d 45, 47 (2d Cir.
1992) (threats); United States v. Rouco, 765 F.2d 983, 995
(11th Cir. 1985) (murder); Steele v. Taylor, 684 F.2d 1193,
1202 (6th Cir. 1982) (defendant pimp used influence and
control over prostitute to induce her to refuse to testify);
United States v. Thevis, 665 F.2d 616, 630 (5th Cir. Unit B
1982) (murder); United States v. Balano, 618 F.2d 624, 628
(10th Cir. 1979) (threat); United States v. Carlson, 547 F.2d
1346, 1360 (8th Cir. 1976) (threat).
The district court expressly found that the correct burden
of proof for the procurement finding was preponderance of
the evidence, although it made a back-up finding that there
was clear and convincing evidence as to White and Hughes.
United States v. White, 838 F. Supp. 618, 623-24 (D.D.C.
1993). 2 Defendants rest their claim to the clear and convinc-
665 F.2d at 631, while the government urges us to follow a
host of circuit court decisions requiring only a preponderance
of the evidence. Houlihan, 92 F.3d at 1280; Aguiar, 975
F.2d at 47; United States v. Mastrangelo, 693 F.2d 269, 273
(2d Cir. 1982); Steele, 684 F.2d at 1202; Balano, 618 F.2d at
629-30.
In Thevis the court noted that a loss of confrontation rights
might expose the defendant to a risk of conviction by unrelia-
ble evidence, as does a courtroom identification following a
possibly flawed out-of-court lineup identification. 665 F.2d at
631. From this similarity, it reasoned that the standard of
proof required to show a reliable, independent basis for a
possibly tainted identification, i.e., clear and convincing evi-
dence, United States v. Wade, 388 U.S. 218, 240 (1967), should
also govern the forfeiture determination. See Thevis, 665
F.2d at 631.
We agree, however, with the other circuits. Although the
main purpose of the confrontation clause is to ensure the
reliability of the evidence, it does not follow that every ruling
on every related issue, even if it may expose the defendant to
uncross-examined testimony, must rest on clear and convinc-
ing evidence. See Mastrangelo, 693 F.2d at 273. The forfei-
ture principle, as distinct from the confrontation clause, is
designed to prevent a defendant from thwarting the normal
operation of the criminal justice system. As the district court
noted, the forfeiture finding is the functional equivalent of the
predicate factual finding that a court must make before
admitting hearsay under the co-conspirator exception. See
White, 838 F. Supp. at 624; see also Houlihan, 92 F.3d at
1280; Steele, 684 F.2d at 1202. Under Fed. R. Evid.
801(d)(2)(E), the government need prove its threshold burden
for that purpose_that a defendant and the declarant who
made the out-of-court statement participated in a single con-
furtherance of that conspiracy_only by a preponderance.
Bourjaily v. United States, 483 U.S. 171, 175-76 (1987).
Although Bourjaily does not expressly consider the standard
of proof on a confrontation clause claim, the discussion does
cite constitutional cases liberally in selecting the preponder-
ance standard, and a later passage in the decision rejects a
generalized claim that the admission of co-conspirator state-
ments under Rule 801(d)(2)(E) violates that clause. Id. at
181-84. As a higher standard of proof under the forfeiture
doctrine would not actually separate out the more from the
less reliable hearsay and admit only the former (it would
simply reduce the scope of the doctrine's application), and as
the public interest in deterring this sort of mischief is great,
we think it correct to use the same standard as is used for co-
conspirators' statements.
Once Williams's testimony clears the Sixth Amendment
hurdle, the rule against hearsay poses no further obstacle to
admission. Some courts have assumed that the hearsay rule
still applies, but have admitted the statements under Fed. R.
Evid. 804(b)(5), which allows admission where the declarant is
unavailable, there are adequate circumstantial guarantees of
trustworthiness, and certain other criteria are satisfied. See
Ruoco, 765 F.2d at 994; Carlson, 547 F.2d at 1354-55. More
commonly, however, courts have taken the view of the trial
court here, see White, 838 F. Supp. at 621, that misconduct
leading to the loss of confrontation rights also necessarily
causes the defendant to forfeit hearsay objections. See Houl-
ihan, 92 F.3d at 1281-82; Mastrangelo, 693 F.2d at 272;
Thevis, 665 F.2d at 632-33; Balano, 618 F.2d at 626.
Again we think the majority view the better one. Because
both the hearsay rule and the confrontation clause are de-
signed to protect against the dangers of using out-of-court
declarations as proof, a defendant's actions that make it
necessary for the government to resort to such proof should
be construed as a forfeiture of the protections afforded under
both. Both the clause and the rule incorporate a preference
for testimony tested by cross-examination, given under oath
with the attendant penalty for perjury, and uttered before a
v. Green, 399 U.S. 149, 155 , 157-58 (1970) (finding that
"hearsay rules and the Confrontation Clause are generally
designed to protect similar values"); Ohio v. Roberts, 448
U.S. 56, 66 (1980); Fed. R. Evid. Advisory Committee's
Introductory Note on the Hearsay Problem, quoted in 4
Weinstein's Evidence 800-2 (1996). The same equity and
policy considerations apply with even more force to a rule of
evidence without constitutional weight. A new Federal Rule
of Evidence, Rule 804(b)(6), scheduled to take effect Decem-
ber 1, 1997, codifies the majority view by establishing an
explicit new exception. See Proposed Amendment to Federal
Rule of Evidence 804(b)(6), 65 U.S.L.W. 4252 (U.S. April 11,
1997).
Defendants claim that even if their rights under the hear-
say rule were forfeited, the district court should have more
intensively screened Williams's statements for reliability. In
so far as they mean that the trial court should have looked for
the sort of indicia of trustworthiness that often support an
exception to the confrontation or hearsay rules, see Ohio v.
Roberts, 448 U.S. at 65 -66; Fed. R. Evid. 804(b)(5), we reject
the claim. The government should be no worse off than if
defendants had not murdered Williams, yet defendants' pro-
posal would do just that. The trial court properly ruled that
the forfeiture would cover only the first layer of hearsay,
allowing admission of those statements that would have been
admissible if Williams himself had made them on the witness
stand, no more and no less. White, 838 F. Supp. at 625. 3
At the preliminary hearing, the trial court heard testimony
on the circumstances under which Williams made the state-
ments to the police, whether they were based on first-hand
knowledge, and how they were recorded. White, 838
F. Supp. at 625. This was to serve as a basis for evidentiary
to make as if Williams had taken the stand. In the course of
trial, the defense made one request to exclude Williams's
hearsay on reliability grounds, which the judge denied. See
Tr. 11/17/93 at 1082-83. The factors which supposedly under-
mined Williams's reliability were standard imperfections for a
witness of his sort_impure motives and side deals with
another drug dealer from whom he had made undercover
purchases. Rather than warranting wholesale exclusion,
these objections were for the jury to consider in deciding
what weight (if any) to give Williams's statements. Similarly,
defendants were free to move for exclusion under Rule 403
based upon the lack of reliability of the agents who relayed
Williams's testimony, but they have identified no trial court
error on that score. Thus the evidence did not fall short of
the minimal reliability standards of constitutional due process
and Fed. R. Evid. 403.
The defendants also pose a series of objections to the
procedure employed by the trial court in deciding whether
the forfeiture rule was applicable. The court held an initial
hearing, outside the presence of the jury, at which a police
detective, Schwartz, relayed to the court the statements of
various persons with evidence that defendants White and
Hughes murdered Williams. For security reasons_potential
witnesses had been threatened, assaulted, even murdered_
Schwartz withheld the names of these hearsay declarants, but
he supplied information on their prior convictions and the
deals made in return for their cooperation, thus affording the
defense some ground for cross-examination and impeachment.
See White, 838 F. Supp. at 622. On this basis, the court
made a preliminary_and explicitly contingent_ruling of ad-
missibility, subject to revision in the event that the declar-
ants' actual testimony proved inadequate. Later, before the
jury, the government put on Williams's statements as proof of
the individual drug transactions he had arranged. Still later,
it put on the Williams murder witnesses, whose testimony had
earlier been supplied to the court via Schwartz; this not only
constituted the government's evidence against defendants on
the substantive murder counts, but also afforded defendants
purposes of the forfeiture determination. As it proved, some
of the evidence was so questionable that the jury was unable
to reach a verdict on the murder counts. To take one
example, the one eyewitness to identify both White and
Hughes as the individuals who shot Williams stated, when she
took the stand, that she was able to say there was only one
person in the car where Williams was murdered, notwith-
standing its dark-tinted windows, because of her "special gift
from God." Further, she picked them out from a photo array
more than two months after the shooting, at a time when her
memory was less than fresh.
On appeal, the defendants criticize this procedure on sever-
al grounds. First they object to the admission of Williams's
statements on the basis of the hearsay from Schwartz, prior
to receipt of the non-hearsay evidence of the murder. They
also challenge the court's denial of their request to compel
disclosure of the murder witnesses' names at the time of the
initial hearing. This appears to be simply an aspect of their
hearsay challenge: with the witnesses' names in hand, they
wished to conduct independent investigations on their credi-
bility and call either the witnesses or the defense investiga-
tors. To the extent that it was an independent discovery
request, it was, as we discuss more fully below, clearly within
the judge's discretion to deny it. See United States v.
Madeoy, 652 F. Supp. 371, 375 (D.D.C. 1987).
As we have said, the trial court quite explicitly made its
waiver determination subject to later reconsideration, after it
had the benefit of the murder witnesses' testimony at trial.
See Tr. 10/15/93 at 566; Tr. 10/22/93 at 1466-67. In reality,
then, the court's ultimate waiver determination was not based
on hearsay. The defendants had the opportunity to examine
the murder witnesses, and were in effect under an invitation
to ask the court to reconsider its forfeiture decision. White
and Hughes never did so. Even though the weaknesses in
the testimony were enough to prevent the jury from reaching
a verdict on the murder counts, neither the defendants nor
the district court thought they were so serious as to call into
question the court's prior evidentiary finding.
There is, in any event, no bar to partial reliance on hearsay
for such preliminary decisions. Federal Rule of Evidence
104(a) says that the court, in making determinations on the
admissibility of evidence "is not bound by the rules of evi-
dence except those with respect to privileges." Because a
judge, unlike a jury, can bring considerable experience and
knowledge to bear on the issue of how much weight to give to
the evidence, and because preliminary determinations must
be made speedily, without unnecessary duplication of what is
to occur at trial, it is within the judge's discretion to admit
hearsay evidence that has at least some degree of reliability.
See Bourjaily, 483 U.S. 171, 180 (1987) (hearsay admissible to
establish co-conspirator hearsay exception); United States v.
Matlock, 415 U.S. 164, 173-76 (1974) (hearsay admissible at
suppression hearing where consent to search at issue); 1
Weinstein's Evidence ¶ 104[02], at 104-28 to 104-31 (1996).
We thus join all the other courts to have addressed the
matter in approving at least partial reliance on hearsay. Of
these courts, three have allowed hearsay declarations by
potential witnesses of the defendants' threats against them,
Aguiar, 975 F.2d at 47; Balano, 618 F.2d at 628; Carlson,
547 F.2d at 1353, and two have permitted hearsay declara-
tions by a murdered potential witness, Mastrangelo, 693 F.2d
at 273; United States v. Houlihan, 887 F. Supp. 352, 356-57
& n.6 (D. Mass. 1995). We leave for another day the issue of
whether a forfeiture finding could rest solely on hearsay.
This takes us to defendants' central procedural objection,
namely to the sequence of events at trial. They claim that
Williams's statements should not have been admitted before
the full exploration of the evidence of his murder. Here, as
we understand it, defendants' objection is twofold. First, so
far as the jury is concerned, because the jury was exposed to
Williams's statements before the full non-hearsay trial of the
murder, there was an undue risk of prejudice to the defen-
dants. Second, and not completely independent, defendants
at oral argument pressed the theory that once the trial judge
contingently admitted Williams's statements on the basis of
hearsay, momentum might have made it difficult for him to
came in.
Because of the trial judge's traditional discretion over such
matters, defendants face an uphill fight. Again the cases on
admission of co-conspirator hearsay supply us with guidance.
Under the discretion embodied in Federal Rule of Evidence
104(c) to hear evidence on preliminary matters within or
without the hearing of the jury, courts routinely admit hear-
say statements of co-conspirators subject to connection
through proof of a conspiracy. See United States v. Perholtz,
842 F.2d 343, 356 (D.C. Cir. 1988); United States v. Jackson,
627 F.2d 1198, 1218 (D.C. Cir. 1980); 1 Weinstein's Evidence
¶ 104[05], at 104-62 to 104-74 (1996) (describing procedure
followed in other circuits). If the connection is not proven,
the court must either strike the testimony and instruct the
jury to disregard it, or, if that is not enough protection, must
grant a mistrial. Jackson, 627 F.2d at 1218. Although in
Jackson we said that "the better practice" was to secure
proof of the conspiracy adequate to sustain admission of the
hearsay before the hearsay itself was received, we made clear
that trial exigencies would often make that impracticable and
endorsed the traditional "subject to connection" approach.
Id. There was no greater danger here of prejudice to
defendants_from admission of Williams's statements, which
might ultimately have proven inadmissible for want of an
adequate procurement showing_than in the co-conspirator
hearsay context, and the procedure followed by the court was
therefore adequate.
We note that here there happened to be a solution that
might have been desirable_full trial of the murder issue
before the jury, which would have concommitantly given the
judge the evidence on the forfeiture issue, followed by admis-
sion of Williams's statements. The defendants never pro-
posed this, however, and so the government had no chance to
make any objections or the trial court to assess the possibili-
ty. Accordingly, we will not compare the merits of that
approach with the procedure that was actually followed.
The alternative that the defendants in fact proposed was a
preliminary hearing (with full presentation of the govern-
ment's murder witnesses), outside the presence of the jury.
This would take place after voir dire, by which time, accord-
ing to the defendants, the identities of the witnesses would
have been disclosed and therefore the security concerns
would have been less pressing. See Tr. 10/15/93 at 559-60.
The claim that this procedure would have met the govern-
ment's security concerns is ill-founded. First, it assumes that
the murder witnesses' names would be disclosed at voir dire,
which was not necessarily the case_and was not in fact the
case. See Tr. 11/1/93 at 111-13. Further, identification of
the murder witnesses at any time before their trial testimony
would have altered defendants' incentives and thereby seri-
ously increased the risks to the witnesses. Before a witness
testifies to the jury, a defendant may avoid conviction if he or
she is able to prevent the witness from appearing. After-
wards, all that witness elimination can achieve is retaliation
and punishment_a lesson to others, to be sure, but scarcely
of overwhelming value. Presumably, under the preliminary
hearing arrangement proposed by defendants, the murder
witnesses' testimony would have been admissible at the trial
through Fed. R. Evid. 804(b)(1), which allows admission of
prior testimony tested at that type of hearing. But testimony
preserved in that fashion is of less value than live testimony,
so that defendants would still have had a considerable incen-
tive to dispose of the witnesses; the witnesses in turn, aware
of the difference between testifying before and at trial, would
have been open to threats and other tactics designed to
obtain their silence. In fact, in this trial the eyewitnesses to
the murder first testified only on November 22, 1993, two
weeks after trial began, so that defendants' proposed prelimi-
nary hearing would have allowed defendants ample time to
act. The course the court took_permitting the government
to keep the identities of the murder witnesses secret until
their trial testimony_was considerably less risky than defen-
dants' proposal.
Further, defendants' suggested sequence would have been
wasteful of judicial time, as the hearing and trial testimony on
court was fully entitled to bear this waste in mind. See
Jackson, 627 F.2d at 1218.
We also cannot accept the claim made by defendants at oral
argument that the trial judge, once he made a preliminary
decision to admit Williams's statements, would have had such
a psychological stake in his preliminary ruling that he would
have been unable to carefully and faithfully assess the non-
hearsay evidence. Defendants' thesis, if correct, would logi-
cally invalidate the standard "subject to connection" treat-
ment of much evidence. The analogy is not exact, of course,
as there the trial judge has not made a preliminary finding
but has assumed that the foundation will eventually be laid.
Here, reluctance to strike the evidence could arise not only
from the frustration of seeing a lengthy trial go to waste but
also_say defendants_from investment of judicial ego in the
preliminary conclusion. But the risk that the latter incre-
ment would be material seems to fall somewhere between
trivial and non-existent_particularly as the improved quality
of the evidence would explain the judge's change of position.
Cf. Mahoney v. Babbitt, No. 97-5005, 1997 WL 241797, at 5
(D.C. Cir. May 13, 1997) (noting limited preclusive value of
findings made in decisions granting or denying preliminary
injunctions); Commodity Futures Trading Comm'n v. Board
of Trade, 701 F.2d 653, 657-58 (7th Cir. 1983) (same). Ac-
cordingly, we find no basis for regarding the trial judge's
procedures here as an abuse of his discretion.
As a final matter, we turn to the question of whether the
court committed clear error in finding that White and Hughes
murdered Williams. There was ample evidence for the court
to come to this conclusion. A bystander eye-witness made a
photo array and an in-court identification of White as one of
the two who shot Williams. Two others made an out-of-court
photo identification of White and one eye-witness picked
Hughes out of a photo array as the second gunman (although
only based on having seen his side-profile). After the mur-
der, a witness testified that he had overheard a conversation
between White and Hughes in which one of them said "[We]
had told him "We took care of Chop [Williams]."
B. Joint Trial (Hicks and Hutchinson)
Before and at different points during the trial, Hicks and
Hutchinson separately moved for severance. The judge de-
nied the motions and they now claim that doing so was an
abuse of discretion. See United States v. Tarantino, 846
F.2d 1384, 1398 (D.C. Cir. 1988).
The Supreme Court has found a general preference for
joint trials in the federal system, based on the interests of
efficiency and a reduced risk of inconsistent verdicts. Zafiro
v. United States, 506 U.S. 534, 537 (1993). But the Rules
provide for severance in order to prevent prejudice to a
defendant. See Fed. R. Crim. P. 14. The most likely scenar-
io for prejudice is where the fact of joint trial leads to the
admission of evidence that tells against a defendant and
would be inadmissible if he were tried alone. The risk is
especially great if the admission is accompanied by a great
disparity of evidence (i.e., the evidence shows that the defen-
dant is far less culpable than his co-defendants) and the
government's case is very complex. Zafiro, 506 U.S. at 539 .
But the Court has noted that often less drastic measures than
severance, such as limiting instructions, can adequately limit
the risk of prejudice. Id. Here, Hicks relies mainly on the
admission of hearsay against him, Hutchinson mainly on
disparity of evidence. Neither convinces us that the district
court abused its discretion.
Hicks points to the Williams hearsay, which was admissible
only against White, Hughes and Ballard, the only defendants
found to have been responsible for his murder. This, he says,
impermissibly implicated him in the drug distribution and
RICO conspiracies. But as we have said that admission alone
does not compel a conclusion of prejudice. See United States
v. Potamitis, 739 F.2d 784, 789-90 (2d Cir. 1984); United
States v. Wood, 879 F.2d 927, 937-38 (D.C. Cir. 1989). Here,
the independent evidence showing Hicks's role as a large-
scale crack distributor was substantial and the court took
hearsay to White and Hughes.
One important limiting measure was the court's direction to
redact the Williams statements for any mention of Hicks,
Hutchinson, the Crew or the First Street Crew. See Order
(D.D.C. Oct. 26, 1993). The government, however, did not
fully carry out this order. On two occasions there were
concededly impermissible references to Hicks. The first
time, Officer Abdalla, the police officer who debriefed
Williams after the October 2, 1993 drug transaction involving
White, testified on direct examination as follows:
Q. And can you describe what it is that Arvell Williams
told you occurred in that transaction on October 2, 1992?
A. I met with Mr. Williams shortly after the purchase
took place on October 2nd in the alley of the 1500 block of
U Street. He advised me that they_himself and Officer
Arrington_were in Officer Arrington's vehicle, and they
drove into the area of First and V Streets and parked.
Officer Arrington stayed in the vehicle. Arvell got out
and walked into the 2000 block of First Street, where he
saw a group of subjects standing, which he knew. He said
they were standing across from Eric's [Hicks's] house. He
said that Danny [Hutchinson], Antone [White], Ronald
[Hughes], Eric [Hicks], Dip_DIP 4 _ and Cliff were stand-
ing there.
He said, he approached the group and yelled to Antone,
let me holler at you. He said Antone then walked away
from the group. He then advised Antone that he needed
two-and-a-half, referring to two-and-a-half ounces.
Tr. 11/15/93 at 726-27 (emphasis added). After counsel ob-
jected, the judge issued corrective instructions, telling the
jury that the references to Hicks and Hutchinson were im-
proper, that it should disregard them, and that the witness"should not have said that." Id. at 738-39.
The second time, Officer Sutherland made the blunder:
Q. What did you and him [Arvell Williams] talk about?
A. We were attempting to arrange a purchase between
Arvell, myself, and Derrick Ballard.....
Q. Now, looking at_on this date, October 6th, 1992,
you spoke to Arvell Williams, you said, about this, correct?
A. Yes, Sir.
Q. What did he say to you, what did you say to him, if
you recall?
A. Okay. We discussed_ the actual intention of the deal
originally was to do a transaction for three ounces with
Eric Hicks.
Tr. 11/16/93 at 812-13 (emphasis added). Again, the judge
issued corrective instructions. Id. at 813.
The two improper references happened in the early days of
a three-month trial, before the bulk of the evidence on Hicks's
participation in the conspiracy and RICO enterprise came in.
The government assured the court that such slips of the
tongue would not occur again, and none did. In addition, the
out-of-court statements were mostly offered as proof of the
individual drug transactions set up by Williams rather than
the general operation of the conspiracy and the RICO enter-
prise, so that the jury was likely able to compartmentalize the
evidence. And at the conclusion of the trial the court em-
phatically instructed the jury to consider the Williams state-
ments only against White and Hughes. Charge to the Jury
at 5 (Jan. 28, 1994); see United States v. Manner, 887 F.2d
317, 325 (D.C. Cir. 1989) (relying in part on instruction to jury
in affirming denial of severance). These facts gave the court
adequate grounds for finding that the hearsay's impact could
be limited to Hughes and White.
Hicks moved for a mistrial following each of the improper
references. The same reasons that justify the court's denial
of severance_the strength of the independent case against
Hicks and the compartmentalization of the hearsay (both in
the way it was presented and the judge's limiting instruc-tions)_also justify denial of the mistrial motions. See Unit-
ed States v. Clarke, 24 F.3d 257, 270 (D.C. Cir. 1994); see also
United States v. Eccleston, 961 F.2d 955, 959-60 (D.C. Cir.
1992) (stressing importance of strength or weakness of gov-
ernment's case in making mistrial determination); Greer v.
Miller, 483 U.S. 756, 766 n.8 (1987) (noting presumption that
jury will follow instructions).
Hutchinson's claim to a severance turns more on his com-
paratively modest role in the drug conspiracy and related acts
of violence. Notwithstanding the fact that he was alleged to
have been involved in fewer overt acts than, say, Hicks, the
independent evidence against Hutchinson showed him on
several occasions selling crack for the First Street Crew.
See, e.g., Tr. 12/14/93 at 3284; Tr. 1/10/94 at 4565-66. On
appeal he tries to pass the government's case off as an
"exaggerated gloss on the circumstantial evidence at trial of
Hutchinson's occasional presence among a group of friends,"
but the evidence was substantial and the disparity in roles not
so great as to require a severance, even considering the one
erroneous reference to him in Williams's hearsay.
C.
Claims Based on Timing of Disclosure of Witnesses and
Impeachment Material (Hughes)
Hughes claims that his right to present a defense was
infringed by the denial of his motion for discovery of the
government's witness list, or, as he styles it, the "anonymous
witness procedure." Since he did not know whom the gov-
ernment was planning to call to testify, the argument goes, he
was less able to cross-examine witnesses, develop inconsisten-
cies in their testimony, and, further down the road, impeach
them.
The constitutional right to cross examine has never been
held to encompass a right to pretrial disclosure of prosecution
witnesses. See Weatherford v. Bursey, 429 U.S. 545, 559
(1977) (holding that Brady v. Maryland, 373 U.S. 83 (1963),
creates no government duty to disclose names of witnesses);
United States v. Bolden, 514 F.2d 1301, 1312 (D.C. Cir. 1975)
(finding that in a non-capital case there is no governmentduty to disclose its witness list); Fed. R. Crim. P. 16 (omit-
ting names of witnesses from items subject to government
disclosure). Compare 18 U.S.C. § 3432 (1994) (requiring
advance notice of witnesses in a capital case). Whatever
discretion we may assume the district court had to order
advance disclosure of witnesses to satisfy particular defense
needs, Hughes here offered no special reason in favor of
disclosure, and security concerns for the witnesses plainly
militated against it. See Memorandum and Order at 20-22
(D.D.C. Oct. 25, 1993); see also United States v. Madeoy, 652
F. Supp. 371, 375 (D.D.C. 1987) (among factors to be consid-
ered in compelling discovery of government witness list are
"[p]reparation for trial, effective cross-examination, expedien-
cy of trial, possible intimidation of witnesses, and the intrinsic
reasonableness of the request").
Hughes also contends that he was deprived of his right to
present a defense because the prosecution did not disclose
material that would have enabled the defense to impeach
three government witnesses. The prosecution's Brady duty
to disclose evidence that is favorable to the defense and
material clearly reaches items useful for impeachment. See
United States v. Dean, 55 F.3d 640, 663 (D.C. Cir. 1995). To
show that evidence is material, the defense must establish
that had it been produced, there is a reasonable probability
that the outcome would have been different, or, if the evi-
dence was produced late, there is a reasonable probability
that earlier disclosure would have changed the outcome. Id.
One of the witnesses in question was a police officer who,
according to an ex parte disclosure to the court, had been
alleged by certain government informants to be possibly
"hospitable to corruption." The informant did not claim to
know of any actual effort to exploit the supposed hospitality,
nor was the prosecutor aware of any effort. The officer's role
was quite trivial: he was a chain-of-custody witness as to
crack recovered in one of Hughes's drug transactions. An
informant's derogatory speculation about a witness who
played a minor role at trial hardly suggests the "reasonable
probability" of a different outcome that is needed for a Bradyviolation.
The two other government witnesses in question, Officers
Ronald Bailey and John Harmon, were among the first police
officers to arrive at the scene of the Williams shooting and
testified about what they had seen and heard. In the middle
of trial they were indicted for corruption. The prosecution
immediately informed the judge, who told the jury and or-
dered the officers' testimony to be stricken from the record.
Hughes speculates that the prosecution must have known
beforehand that Officers Bailey and Harmon were suspected
of corruption, and thus violated its Brady duty in failing to
turn the information over earlier.
Under other circumstances the case might raise an inter-
esting question about how broadly one defines "the prosecu-
tion" for purposes of the Brady duty to disclose; presumably
someone in the U.S. Attorney's office knew of the evidence
against the officers well before the assistant handling this
case did. Cf. United States v. Brooks, 966 F.2d 1500 (D.C.
Cir. 1992) (discussing prosecutor's duty to search for Brady
materials). Here, however, Hughes can show no prejudice.
The most that earlier disclosure could have given him was the
ability to neutralize the two witnesses on cross-examination.
When the court told the jury of the indictments and said that
the officers' testimony was being stricken, Hughes got exactly
that; there is no suggestion that their testimony was unfor-
gettably vivid or that a cross based on this alleged corruption
would somehow have contaminated the government's whole
case. If there was error, it was harmless. See Chapman v.
California, 386 U.S. 18, 24 (1967).
D. Limits on Cross-Examination (Hughes)
Appellant Hughes argues that the district judge improperly
curtailed his cross-examination of three prosecution wit-
nesses: Dequette Barr, a juvenile drug runner for the First
Street Crew; Detective Angelo Parisi; and Sergeant Suther-
land. Reviewing the district court's limits on cross-
examination for abuse of discretion, see United States v.Thorne, 997 F.2d 1504, 1513 (D.C. Cir. 1993), we find none.
Seventeen years old at the time of trial, Dequette Barr
gave damaging testimony against appellants. Among other
things, Barr accused Hughes of threatening to kill him if he
testified against Hughes. In a thorough cross-examination,
Hughes's counsel established that Barr used and dealt drugs
regularly, had three cars, earned around $5,000 a week from
drug dealing, had recently been charged with the armed
robbery of a family friend, and had agreed to plead guilty to a
lesser robbery charge and to testify against appellants in
exchange for the Government dismissing the armed robbery
charge and a related firearm count. Hughes's co-counsel also
established that Barr had lied to the judge in the armed-
robbery case, had lied to a probation officer during a presen-
tence interview, and had been promised use immunity in
exchange for his testimony about the First Street Crew's
activities. Under these circumstances, the district court did
not abuse its discretion in refusing to allow Hughes to cross-
examine Barr on whether he had set his jail cell on fire.
Even assuming such evidence was probative of Barr's truth-
fulness, as required by Fed. R. Evid. 608(b), it would have
been cumulative. Nor did the court err in refusing to allow
cross-examination regarding a prison grievance form stating
in part that Barr was being denied "proper psychological"
treatment. Joint Appendix ("J.A.") Vol. II at 721. Barr was
not housed in the jail's psychiatric wing, and counsel present-
ed no other evidence that Barr suffered from a mental illness.
See United States v. Smith, 77 F.3d 511, 516 (D.C. Cir. 1996)
(evidence regarding mental illness relevant "only when it may
reasonably cast doubt on the ability or willingness of a
witness to tell the truth") (emphasis added).
The district court allowed Hughes's counsel, who was at-
tempting to develop a theory that Hughes was not a member
of the First Street Crew but of a different gang altogether, to
question Detective Parisi at length about the fact that he first
identified Hughes while monitoring Felman Hampton, the
leader of another gang. Counsel also secured the damaging
admission from Parisi that he at one time thought Hughes
and Hampton worked together selling drugs. Having afford-ed defense counsel ample leeway on cross-examination, allow-
ing her to stray far beyond the scope of direct, Tr. 12/20/93 at
3847, the district court did not abuse its discretion in barring
counsel from questioning Detective Parisi further.
With regard to Sergeant Sutherland, the court allowed
counsel to cross-examine him on Williams's drug use, drug
dealing, and prior convictions. Under cross-examination,
Sutherland admitted that the police never tested Williams for
drugs while Williams was working for them and that Suther-
land did not know whether Williams was dealing drugs on the
side. Hughes challenges the court's refusal to allow counsel
to ask whether Williams had ever made false statements on
an employment application and whether he had ever violated
any court orders.
Although Fed. R. Evid. 806 provides that the credibility of
a hearsay declarant "may be attacked, and if attacked may be
supported, by any evidence which would be admissible for
those purposes if declarant had testified as a witness," coun-
sel attacked Williams's credibility using specific examples of
misconduct, which, under Fed. R. Evid. 608(b), cannot be
proved by extrinsic evidence. See United States v. Morrison,
98 F.3d 619, 628 (D.C. Cir. 1996), cert. denied, 117 S. Ct.
1279-80 (1997); United States v. Brooke, 4 F.3d 1480, 1484
(9th Cir. 1993); United States v. Lopez, 944 F.2d 33, 38 (1st
Cir. 1991). Accordingly, Hughes's counsel could have asked
Sergeant Sutherland only if Williams had ever lied on an
employment form or violated any court orders, and could not
have made reference to any extrinsic proof of those acts. See
Brooke, 4 F.3d at 1484; Lopez, 944 F.2d at 38. Having
known Williams for less than two months before his death,
Sutherland may or may not have been able to answer those
questions. In light of the damage already done to Williams's
credibility through Sutherland's testimony about Williams's
drug use, drug dealing, and prior convictions, the district
court was within its discretion to conclude that the questions
were of little utility.
Hughes argues finally that the district court improperly cut
off questions to Sutherland about the precautions the police
took to protect Williams on the day of his murder. According
to Hughes, this prevented counsel from developing her theory
that Hughes was simply a scapegoat for police who had failed
to protect an informant. But because Hughes was not con-
victed of the murder of Arvell Williams or of any counts
related to the murder, any error in restricting cross on
Hughes's thoroughly speculative theory was harmless.
E. Admission of Audiotapes (Hutchinson)
Claiming that the August 19 and 21 NAGRA tapes were
not properly authenticated, appellant Hutchinson challenges
their admission, as well as the jury's use of Government-
prepared transcripts while listening to the tapes. He also
challenges Sergeant Sutherland's identification of his voice,
claiming that the identification rested at least in part on an
un-Mirandized, post-arrest conversation. Admission of tape
recordings falls within the "sound discretion" of the trial
court. United States v. Sandoval, 709 F.2d 1553, 1554 (D.C.
Cir. 1983) (citing United States v. Slade, 627 F.2d 293, 301
(D.C. Cir. 1980)). Because Hutchinson failed to challenge
Sutherland's voice identification in the district court, we
review that claim for plain error only. See United States v.
Olano, 507 U.S. 725, 732 (1993).
To authenticate the tapes, the prosecution put on Officer
Larry Sterling, who described the characteristics of a
NAGRA recording device and identified the original tapes
from the August 19 and 21 drug transactions. Sterling
explained how he made copies of the originals and testified
that the tapes were never reused. Sergeant Sutherland
confirmed that the portions of the two conversations in which
he participated were accurately recorded.
We have held that absent a showing of bad faith or
evidence tampering, the Government need only "demonstrate
that, 'as a matter of reasonable probability,' possibilities of
misidentification and adulteration have been eliminated."
United States v. Stewart, 104 F.3d 1377, 1383 (D.C. Cir. 1997)
(quoting United States v. Robinson, 447 F.2d 1215, 1220 (D.C.Cir. 1971) (en banc), on rehearing, 471 F.2d 1082 (1972), rev'd
on other grounds, 414 U.S. 218 (1973)). Here, where one
witness testified at length about the process of creating the
tapes and identified the originals, and where another witness
confirmed the accuracy of the portions of the tapes with
which he was familiar, the Government met its burden. See
United States v. Strothers, 77 F.3d 1389, 1392 (D.C. Cir.)
("Tapes may be authenticated 'by testimony describing the
process or system that created the tape' or 'by testimony
from parties to the conversation affirming that the tape[s]
contained an accurate record of what was said.' ") (quoting
United States v. Dale, 991 F.2d 819, 843 (D.C. Cir. 1993)),
cert. denied, 117 S. Ct. 374 (1996); cf. Sandoval, 709 F.2d at
1555 (holding where tape corroborated by independent testi-
mony of two police officers, and where defendant did not
challenge accuracy of recording, court did not err in admit-
ting tape despite prosecution's failure to authenticate it).
Nor did the court abuse its discretion by allowing the
Government to authenticate the tapes in the jury's presence,
cf. Slade, 627 F.2d at 300 (decision to verify audibility of tapes
in front of jury not an abuse of discretion), or by permitting
the jury to use transcripts prepared by the prosecution.
Hutchinson does not challenge the accuracy of the tran-
scripts, see id. at 302, and the district court instructed the
jury that the transcripts were not evidence but merely in-
tended to assist them in listening to the tapes. See id. ; Tr.
11/9/93 at 278.
Finally, the district court did not err, much less plainly err,
when it allowed Sutherland to identify Hutchinson's voice
based on a 45-minute post-arrest and concededly un-
Mirandized conversation. Sutherland did not testify about
the content of the conversation, and no Fifth Amendment
right attaches to the sound of one's voice. See United States
v. Dionisio, 410 U.S. 1, 7 (1973) (Fifth Amendment privilege
does not prohibit compelling voice exemplars); United States
v. Thomas, 586 F.2d 123, 133 (9th Cir. 1978) (agent's identifi-
cation of defendant based on sound of voice, not content of
prior conversation, did not violate Fifth Amendment); United
States v. Ryan, 478 F.2d 1008, 1012-13 (5th Cir. 1973)(agent's identification of defendant's voice based on non-
Mirandized conversation did not violate Fifth Amendment);
cf. Fed. R. Evid. 901(b)(5) (stating that witness may identify a
voice to determine admissibility of recorded conversations if
witness has heard the voice " at any time under circumstances
connecting it with the alleged speaker") (emphasis added).
F. Testimony of Detective Rawls
Appellants jointly argue that the district court erred in
allowing Detective Dwight Rawls to testify as an expert in the
narcotics trade, claiming that his testimony violated Fed. R.
Evid. 704(b) because he testified about the mental state of the
defendants, and Fed. R. Evid. 702 because he gave his
opinion on the ultimate issues of defendants' participation in
an illegal conspiracy and in a continuing criminal enterprise.
Because appellants failed to object to the portions of Rawls's
testimony they now challenge, we again review for plain error
only. See Olano, 507 U.S. at 732 .
As we read the record, the prosecutor took great care to
avoid eliciting improper testimony from Rawls. After first
asking Rawls about the origin and makeup of crack cocaine
and its packaging for distribution, the prosecutor posed a
series of questions about the District's cocaine distribution
network, all couched in the first person: "Detective Rawls, if
I wanted to become_to start selling crack cocaine in Wash-
ington, could I walk up to somebody I thought was selling on
the street and just ask them for a large amount of crack
cocaine?" Tr. 1/14/94 at 5146. "If I'm starting off in the
cocaine business, are there any tools of the trade or pieces of
equipment I should pick up?" Id. at 5148. "What kinds of
things would I want people to do for me rather than do
myself in the drug business if I was working my way up?"
Id. at 5151. "How do I go about selecting a stash house
... ?" Id. at 5156.
Notably absent from both the prosecutor's questions and
Rawls's answers were the "mirroring hypotheticals" that have
concerned us in other cases. In one case, for example, the
prosecutor posited a "hypothetical" person with "25.5 grams[of a substance] that turns out to be cocaine base ... a pager,
$580 in small denomination bills, 56 empty ziploc bags, and a
9 millimeter handgun," asking an expert witness what activity
possession of those items suggested. United States v. Smart,
98 F.3d 1379, 1385 (D.C. Cir. 1996), cert. denied, 117 S. Ct.
1271 (1997). In another, United States v. Mitchell, 996 F.2d
419, 422 (D.C. Cir. 1993), the prosecution presented an expert
witness with a hypothetical person carrying nine ziploc bags
of crack cocaine, asking what the intent of the person carry-
ing the ziplocs was. The expert witness responded, "It was
intent to distribute." And in a third case, an expert witness,
asked by the prosecutor to describe the intentions of a person
possessing a number of ziploc bags, responded that the bags
"were meant to be distributed." United States v. Williams,
980 F.2d 1463, 1465 (D.C. Cir. 1992). In each of these cases,
we concluded that admission of the expert's testimony violat-
ed Rule 704(b), but nevertheless affirmed, either because the
error was harmless or because the district judge intervened
to cure the error. Smart, 98 F.3d at 1391 (harmless error, in
light of overwhelming evidence); Mitchell, 996 F.2d at 423
(no plain error, because no settled circuit law on mirroring
hypotheticals prior to defendant's trial); Williams, 980 F.2d
at 1466 & n.1 (judge's comment that expert witness "ha[d] no
knowledge" about defendant's intentions sufficient to cure
error; in alternative, error harmless).
In this case, the only mirroring hypotheticals came from
defense counsel. See Tr. 1/14/94 at 5211. The prosecutor
properly confined his questions to elicit "expert testimony
concerning the modus operandi of individuals involved in
drug trafficking," which, as we have repeatedly held, does not
violate the rules of evidence governing expert testimony.
United States v. Boyd, 55 F.3d 667, 671 (D.C. Cir. 1995) (no
violation of Rule 704(b) when expert testifies as to modus
operandi of drug dealers, including drug packaging and roles
that individuals play in drug distribution network); United
States v. Boney, 977 F.2d 624, 628 (D.C. Cir. 1992) ("The
operations of narcotics dealers repeatedly have been found to
be a suitable topic for expert testimony because they are not
within the common knowledge of the average juror."); cf.United States v. Clarke, 24 F.3d 257, 268 (D.C. Cir. 1994).
Rawls's testimony was a textbook direct examination of a
drug expert.
Appellants' argument that Rawls's testimony violated Rule
702 is equally unpersuasive. Despite the district judge's
express admonition before Rawls took the stand that counsel
should object if they thought any testimony or question
improper, see Tr. 1/14/94 at 5133, appellants failed to object
at any time to the statements they now claim warrant rever-
sal. Indeed, nearly all of appellants' examples of objectiona-
ble testimony occurred on cross-examination. The testimony
appellants highlight as "particularly pernicious," Rawls's
statement that groups working together to screen and refer
customers were "definitely a part of the same enterprise,"
came in response to this question on cross-examination:
"That is, the people that were selling in the same area do [sic]
regard themselves as part of the same enterprise. Is that
what you're saying?" Tr. 1/14/94 at 5173-74. We will not
allow appellants to use Rawls's response_"No. They're defi-
nitely a part of the same enterprise"_to argue that his
testimony impermissibly established the "enterprise" element
of a "continuing criminal enterprise," when appellants put the
words in his mouth to begin with.
G. Proof of Age (Hughes)
Hughes was born on October 3, 1973. To convict him of a
section 846 drug conspiracy, the Government had to prove
that he ratified his participation in the conspiracy at some
point after his eighteenth birthday in October 1991. United
States v. Welch, 15 F.3d 1202, 1209 (1st Cir. 1993); United
States v. Maddox, 944 F.2d 1223, 1233 (6th Cir. 1991). In his
motion for judgment of acquittal on the drug conspiracy
count, Hughes argued that the Government failed to prove his
age and had therefore failed to provide the jury with evidence
from which it could conclude that Hughes ratified his partic-
ipation in the conspiracy after he turned eighteen. In re-
sponse the prosecution pointed to two heatseals, Exhibits
132-B and 133-B, with Hughes's date of birth written at thetop. Heatseals are plastic evidence envelopes containing, in
this case, drugs seized during the arrest, sealed across the
top with a hot press to prevent tampering. Claiming that
they contained hearsay, Hughes objected to the use of the
heatseals. The court overruled his objection, denying his
motion for judgment of acquittal. Later, in response to a
note from the jury requesting defendants' birth dates, and
over Hughes's objection, the court directed the jury to look at
Exhibits 132-B and 133-B.
Hughes claims the judge committed reversible error when
he denied his motion for judgment of acquittal. Hughes first
raised a hearsay objection to Exhibits 132-B and 133-B on
January 24. But nearly three weeks earlier, during direct
examination of Officer Larry Hale, the Government intro-
duced Exhibit 132-B and the court accepted it into evidence.
No one objected. Tr. 1/5/94 at 4376. Hughes's hearsay
challenge to Exhibit 132-B thus "comes too late." Salzman
v. United States, 405 F.2d 358, 361 (D.C. Cir. 1968). See also
United States v. Hernandez, 780 F.2d 113, 117 n.4 (D.C. Cir.
1986) (hearsay statement, unobjected-to at trial, "properly
admitted and given its full probative value"); United States
v. Sampol, 636 F.2d 621, 683 (D.C. Cir. 1980) (having failed to
object to certain testimony at trial, appellants were "not in a
position to complain that the admission of the ... testimony
was error").
Because Hughes failed to object to Exhibit 132-B, our
review is again for plain error only. See United States v.
Washington, 12 F.3d 1128, 1138 (D.C. Cir. 1994). Hughes
does not challenge the accuracy of the birth date on the heat
seals. In fact, in an earlier filing in the district court and
again at oral argument, counsel admitted that Hughes was
born on October 3, 1973. Mem. of Points and Authorities In
Support of Mot. To Dismiss Indictment (Sept. 7, 1993) at 2.
Because Exhibit 132-B provides sufficient basis for the jury
to determine Hughes's birth date, and thus that Hughes
ratified his participation in the drug conspiracy after he
became an adult, his conspiracy conviction stands.
H. Enterprise Element of RICO Conspiracy (White)
White argues that there was insufficient evidence that the
conspiracy had the requisite degree of structure apart from
its pattern of substantive offenses and that the district court
incorrectly charged the jury on the enterprise element of the
First Street Crew's Racketeer Influenced and Corrupt Orga-
nizations Act (RICO) conspiracy. 5 We conclude that consid-
erable evidence indicates the conspiracy possessed a structure
that extended beyond the substantive offenses and that the
instructions thoroughly and accurately described the enter-
prise element, keeping it distinct from the pattern of racke-
teering activity.
1.Standard of Review and Applicable Law
As to the sufficiency of the evidence, Hughes's counsel
argued that "there has been no identifiable structure to this
group proven by the government." Tr. 1/21/94 at 5272-73.
In support of White's motion for judgment of acquittal, his
counsel "adopt[ed] and join[ed] in all of the arguments that
have been made by other counsel." Id. at 5311. The point
thereby having been preserved for appeal, we affirm the
jury's finding of guilt if, "after viewing the evidence in the
light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime
beyond a reasonable doubt." Jackson v. Virginia, 443 U.S.
307, 319 (1979). The only defense objection in the record
covering the district court's instructions on the enterprise
element is Hughes's counsel's objection "to all instructions
which are different than those proposed by the defendants."
Tr. 1/25/94 at 5584. We are not convinced that this generic
objection adequately apprised the district court of any partic-
ular assignment of error. See United States v. Sayan, 968
F.2d 55, 59-60 (D.C. Cir. 1992) (failure to object to instruction
on ground asserted on appeal results in plain error review);
see also United States v. Purvis, 21 F.3d 1128, 1130 (D.C. Cir.
1994) (general objection to variance from form instruction
preserves point if, "in light of the surrounding circumstances,
[it is] sufficient to provide the district court with some indiciaof the potential defects in the instruction"). Nevertheless, we
assume arguendo that the objection adequately preserved all
relevant objections. Accordingly, we review de novo whether
the instructions properly conveyed the enterprise element of
the RICO conspiracy to the jury. United States v. Fennell,
53 F.3d 1296, 1301 (D.C. Cir. 1995). We defer to the district
court's choice of language unless it constituted an abuse of
discretion. Joy v. Bell Helicopter Textron, 999 F.2d 549, 556
(D.C. Cir. 1993).
"Evidence of an ongoing organization, formal or informal"
and "evidence that the various associates function as a con-
tinuing unit" are essential to establish the enterprise element
of a RICO conspiracy. United States v. Turkette, 452 U.S.
576, 583 (1981); see also United States v. Perholtz, 842 F.2d
343, 362 (D.C. Cir.) (enterprise established by proof of "(1) a
common purpose among the participants, (2) organization,
and (3) continuity"), cert. denied, 488 U.S. 821 (1988). While
the enterprise "is an entity separate and apart from the
pattern of activity in which [the enterprise] engages" and "at
all times remains a separate element which must be proved
by the Government," Turkette, 452 U.S. at 583 , "the existence
of the enterprise may be inferred from proof of the pattern,"
Perholtz, 842 F.2d at 362.
2.Sufficiency of the Evidence
White argues that the government failed to produce suffi-
cient evidence that the First Street Crew had the degree of
organization required to constitute an enterprise. In his
view, the government did not prove that the conspiracy
possessed "an organizational pattern or system of authority."
United States v. Tillett, 763 F.2d 628, 632 (4th Cir. 1985)
(citing United States v. Lemm, 680 F.2d 1193 (8th Cir. 1982),
cert. denied 459 U.S. 1110 (1983)). Instead, he argues that
the government proved only the predicate acts, without estab-
lishing the existence of a separate organization.
Specifically, White contends that the evidence established
only that White and Hicks supplied drugs to others, who then
acted as independent drug sellers and retained their own
profits. He adds that there was no proof of a hierarchy ordecision-making process within the conspiracy and asserts
that the government's evidence at best "proved a loosely knit
association of neighborhood drug dealers." White's Br. at 15.
In his reply brief, he observes that one of the government's
witnesses stated that White and Hicks personally participated
in preparing cocaine for sale_in his view contradicting their
allegedly supervisory status.
In response, the government points to a wide range of
evidence about the organization of the First Street Crew and
its operations. Among other things, the conspiracy gave
itself a name, Tr. 1/10/94 at 4580, protected a geographic
marketing area, id. at 4581, and ran centralized crack storage
and preparation operations (for example, at Hicks's house, id.
at 4580). 6 In addition, the evidence demonstrated that White
and Hicks occupied positions superior to the conspiracy's
retail-level drug sellers. After 1990, White participated di-
rectly in large sales only. Id. at 4585. White and Hicks used
others to sell to buyers they did not know, id. at 4573, and
supplied crack to middle-men, who resold it at the retail level,
Tr. 12/15/93 at 3437; Tr. 12/16/93 at 3621-22, 3629; Tr.
1/12/93 at 4902-05. White and Hicks issued instructions to
other members of the conspiracy. Tr. 11/17/93 at 1060-61,
1122. White and Hicks shared their income and cocaine
supplies, Tr. 12/16/93 at 3623; Tr. 1/10/94 at 4587-88, and
Hicks substituted for White in the Crew's leadership when
White was incarcerated, Tr. 1/10/94 at 4589-90. As to
White's contention that if he and Hicks truly were supervi-
sors they would not have prepared cocaine for sale them-
selves, the fact that supervisors may assist in an organiza-
tion's substantive work when the need arises does not negate
their supervisory role. Accordingly, the evidence of the
conspiracy's structure and hierarchy more than adequately
established the organization prong of the enterprise elementof a RICO conspiracy.
3.Instructions
White argues that the district court's RICO conspiracy
instructions were flawed in that they did not make clear that
the enterprise must exist separate and apart from the predi-
cate acts. Although the instructions do not expressly state
that the enterprise is separate from the pattern of racketeer-
ing activity, they emphasize that an enterprise is an essential
element of a RICO conspiracy. Tr. 1/28/94 at 48-49. They
make clear, in language similar to that set out in Turkette and
Perholtz, that the existence of an enterprise "may be estab-
lished by evidence showing an ongoing organization, formal or
informal, and by evidence that the individuals making up the
association functioned as a continuing unit." Id. at 49. And
they discuss the enterprise element of a RICO conspiracy
separately from the pattern of racketeering activity element. 7
The instructions thus give "proper attention ... to the orga-nization and continuity requirements for the enterprise, on
the one hand, and the 'continuity plus relationship' require-
ment for the pattern of racketeering, on the other hand."
Perholtz, 842 F.2d at 363. Accordingly, we conclude that the
district court's RICO conspiracy instructions adequately in-
formed the jury of the enterprise element.
I.
RICO Conspiracy in Interstate Commerce (White and
Hicks)
White and Hicks argue that there was insufficient evidence
that the First Street Crew's RICO conspiracy was engaged in
or substantially affected interstate commerce and that the
district court's instructions on the interstate commerce ele-
ment of the conspiracy were incorrect. 8 They base their
arguments principally on United States v. Lopez, 115 S. Ct.
1624 (1995), in which the Supreme Court struck down the
Gun-Free School Zones Act of 1990 on the ground that it did
not have a constitutionally sufficient connection to interstate
commerce. Under our post- Lopez decision in United States
v. Edwards, 98 F.3d 1364 (D.C. Cir. 1996), cert. denied, 117
S. Ct. 1437 (1997), however, their interstate commerce argu-
ment fails.
In Edwards, we held that the Comprehensive Drug Abuse
Prevention and Control Act of 1970 (Drug Act) regulates
activities that substantially affect interstate commerce and
thus that the Drug Act is within Congress's commerce clause
power. See Edwards, 98 F.3d at 1369; see also United
States v. Leshuk, 65 F.3d 1105, 1112 (4th Cir. 1995) (conclud-
ing intrastate activities regulated by Drug Act "are clearly
tied to interstate commerce"). If the underlying activity ( e.g.,
drug dealing) substantially affects interstate commerce, con-
spiracies engaging in that activity also substantially affect
interstate commerce. See United States v. Conn, 769 F.2d
420, 424 (7th Cir. 1985). Accordingly, the voluminous evi-
dence of the underlying drug offenses also serves as evidence
of the conspiracy's substantial effect on interstate commerce.
Moreover, the fact that the district court did not require the
jury to find that the conspiracy in this case affected interstate
commerce to any particular degree is irrelevant. See Lopez,
115 S. Ct. at 1629 (" '[W]here a general regulatory statute
bears a substantial relation to commerce, the de minimis
character of individual instances arising under the statute is
of no consequence.' ") (emphasis in original) (quoting Mary-
land v. Wirtz, 392 U.S. 183, 197 n.27 (1968), overruled on
other grounds, National League of Cities v. Usery, 426 U.S.
833, 840 (1976)).
J. Instructions on Drug Conspiracy
The appellants argue jointly that the district court's in-
structions on their multiple conspiracy theory, on the knowl-
edge element of the drug conspiracy and on their buyer-seller
relationship theory were erroneous. 9 We conclude that the
court conveyed the essential information regarding the appel-
lants' multiple conspiracy theory, their argument about the
knowledge element is based on a misreading of the pertinent
instruction and the buyer-seller relationship instruction was
accurate.
1.Standard of Review
While two of the appellants' lawyers objected at trial to the
district court's instruction on the buyer-seller relationship, Tr.
1/25/94 at 5572, 5596, there were no specific objections to the
instructions on the multiple conspiracy theory and the knowl-
edge element. One defense counsel, however, objected to all
instructions that differed from the defense's proposed instruc-
tions, id. at 5584, and we will assume arguendo that the three
issues were preserved for appeal. 10 We therefore review de
novo whether the district court's instructions properly con-
veyed the elements of the drug conspiracy to the jury.
United States v. Fennell, 53 F.3d 1296, 1301 (D.C. Cir. 1995).
We defer, however, to the district court's choice of language
unless that language constituted an abuse of discretion. Joy
v. Bell Helicopter Textron, 999 F.2d 549, 556 (D.C. Cir. 1993).
2.Multiple Conspiracies
The appellants argue that the district court inadequately
charged the jury on the difference between a single conspira-
cy (as the government alleged) and multiple conspiracies (as
they claimed). Specifically, they contend that the instruction
did not require the jury to acquit if it found separate conspir-
acies and did not explain how to distinguish a single conspira-
cy from multiple conspiracies.
The district court instructed the jury that the separate
drug sales did not amount to a single conspiracy under
White's defense theory, Tr. 1/28/94 at 23, that "proof of
several separate conspiracies would not be proof of the single,
overall conspiracy charged in the indictment," id. at 45, and
that, to convict, each defendant must have joined in the main
conspiracy, id. at 42, and the conspirators had to have en-
tered into a common undertaking, id. at 43. The appellants
rely exclusively on United States v. Tarantino, 846 F.2d 1384
(D.C. Cir.), cert. denied, 488 U.S. 867 (1988), to challenge
those instructions. But the only relevant charge given in
Tarantino and omitted here was the express instruction to
acquit if there was no single conspiracy as charged and the
statement that "[i]f you find that a particular defendant is amember of another conspiracy, not the one charged in the
indictment, then you must acquit the defendant." Id. at 1400.
As to the first point, in addition to instructing the jury that
proof of multiple conspiracies is not proof of the single
conspiracy as charged, the court explained the government's
burden of proving beyond a reasonable doubt "the elements
of each of these offenses." Tr. 1/28/93 at 26. The court was
not required to additionally remind the jury, as it discussed
each offense, to acquit the defendant if that offense was not
proved. On the second point, the court's instructions that, to
convict, the defendants had to have entered into a common
undertaking and could not instead have been members of
separate conspiracies adequately conveyed the notion that a
defendant who is a member of a conspiracy other than the
single, charged conspiracy must be acquitted. Accordingly,
the instructions on the multiple conspiracy theory were ade-
quate.
3.Knowledge Element
The appellants next argue that the district court improper-
ly instructed the jury that a defendant need not have been
aware of the conspiracy's common purpose or have known
that the conspiracy existed. The appellants misread the
pertinent instruction.
To support a conspiracy conviction, a defendant must have
knowingly participated in the conspiracy. United States v.
Wynn, 61 F.3d 921, 929 (D.C. Cir.), cert. denied, 116 S. Ct.
578 (1995); see also United States v. Childress, 58 F.3d 693,
707 (D.C. Cir. 1995) (conspiracy is specific intent crime re-
quiring knowing participation), cert. denied, 116 S. Ct. 825
(1996). Accordingly, the district court instructed the jury
that, to convict, it had to find that "the defendant knowingly
and willfully joined and participated in the conspiracy with
the specific intent to distribute crack or to possess it with
intent to distribute it." Tr. 1/28/94 at 42. The appellants do
not contest the accuracy and adequacy of that instruction but
contend that the following charge undermined it:
It is not necessary that the government prove that a
particular defendant was aware of the common purpose,
had knowledge that the conspiracy existed, and was a
member of the conspiracy from the beginning. Different
persons may become members of the conspiracy at dif-
ferent times.
Id. at 44. In the appellants' view, the above instruction
allowed the jury to convict a defendant who had no awareness
of the conspiracy's common purpose and no knowledge of the
conspiracy's existence. The disputed charge, however, oc-
curred in the middle of a series of instructions spelling out in
more detail, but not superseding or eliminating, the earlier,
more general instructions regarding the elements of a con-
spiracy. Viewed in the context of the entire charge, there-
fore, we conclude that the more natural reading of the
sentence is that the phrase, "from the beginning," modifies all
three of the preceding clauses. In other words, the instruc-
tion explained that a defendant need not have been aware of
the conspiracy's common purpose "from the beginning," have
known of the conspiracy's existence "from the beginning" or
have been a member of the conspiracy "from the beginning."
The court's phraseology thus was plainly within its discretion.
See Joy, 999 F.2d at 556 (district court's choice of language in
instructions reviewed for abuse of discretion).
4.Buyer-Seller Transaction
Finally, the appellants argue that the district court's in-
struction on their buyer-seller defense theory was not bal-
anced. Specifically, they complain that, although the court
provided an accurate explanation of the theory, it did not
summarize the evidence supporting the theory and added an
explanation that other evidence may combine with a buyer-
seller relationship to establish a conspiracy.
After instructing the jury that "[a] simple buyer-seller
relationship alone does not make out a conspiracy," the court
explained the circumstances in which such a relationship may
combine with other evidence to prove the existence of a
conspiracy. 11 Tr. 1/28/94 at 43. The appellants characterizethe latter portion of the instruction as "summariz[ing] the
facts relied upon by the government but not those advanced
by the defense." Appellants' Joint Br. 78. Relying on Unit-
ed States v. Conlon, 661 F.2d 235, 237 (D.C. Cir. 1981)
(refusal to give defense theory instruction not error if court
does not recite facts supporting government's theory), cert.
denied, 454 U.S. 1149 (1982), they contend that the instruc-
tion was impermissibly imbalanced. Some of the factors_
such as multiple sales and sales on credit_the district court
identified as examples of factors that can combine with a
buyer-seller relationship to prove the existence of a conspira-
cy did overlap with the facts of this case. Nevertheless, the
examples the district court used accurately illustrated the
legal point and did not rise to a "review by the Trial Court of
the facts relied upon by the government." Id. We therefore
reject this assignment of error.
III
A. Juror Misconduct
The appellants argue that the district court should have
conducted a hearing to determine whether juror misconduct
interfered with their right to be tried by an impartial jury.
Specifically, they contend that the court should have investi-
gated whether they were prejudiced by juror no. 10's alleged
contact with a government witness's sister, prejudicial state-
ments during deliberations and dishonesty during voir dire. 12
that the alleged misconduct had not occurred and therefore it
was not required to conduct a hearing on the question of
prejudice.
1.Standard of Review
We review the district court's choice of procedures to
investigate the alleged juror misconduct for abuse of discre-
tion. 13 United States v. Williams-Davis, 90 F.3d 490, 497
(D.C. Cir. 1996), cert. denied, 117 S. Ct. 986 & 988 (1997).
The district court's factual determinations regarding the al-
leged misconduct are "entitled to great weight, and [in the
absence of new facts] ought not to be disturbed unless ...
'manifestly unreasonable.' " Hobson v. Wilson, 737 F.2d 1, 49
(D.C. Cir. 1984), cert. denied, 470 U.S. 1084 (1985); see also
Leisher v. Conrad, 41 F.3d 753, 756 (D.C. Cir. 1994).
2.Background
During the initial screening of the jury using a written
questionnaire, the district court asked potential jurors wheth-
er they or their close friends or relatives lived, worked orfrequently spent time near the intersection of First Street
and Rhode Island Avenue, NW_the area of the appellants'
drug sales. The court asked a similar question during voir
dire, as well as whether the potential jurors knew any of the
parties or the potential witnesses. Juror no. 10 apparently
answered "no" to those questions.
After the trial ended, the appellants obtained an affidavit
from the jury forewoman asserting that juror no. 10 stated
during deliberations that she had recently spoken with the
sister of a government witness, Michael Jackson (Jackson),
and the sister had told her that White and his group were
responsible for the death of another government witness,
Doris J. or Johnson (Doris). J.A. Vol. II at 558 bis. The
appellants moved for a new trial and requested a hearing to
investigate the alleged misconduct. Id. at 553-57. In oppos-
ing the new trial motion, the government submitted affidavits
from: (1) Jackson's four sisters, denying that they knew any
jurors in the case, id. at 578-85; (2) the forewoman, explain-
ing that juror no. 10 did not claim she learned of Doris's
death from Jackson's sister, that juror no. 10's statements
occurred after the jury had returned the last of the convic-
tions upon which it agreed and that the statements came
while the jury was "screaming and hollering" and thus may
not have been heard by the other jurors, id. at 598-601; and
(3) juror no. 10, denying that she knew any of the witnesses
or their family members, including Jackson and his sisters,
that she knew of the deaths of any potential witnesses or that
she made any of the statements attributed to her by the
forewoman, id. at 602-05. The appellants declined a subse-
quent opportunity to interview juror no. 10 under terms
imposed by the court. The court denied the new trial motion
without a hearing.
3.Decision Not to Conduct Hearing
If an improper private communication with a juror has
occurred, a hearing ordinarily is required to determine
whether the communication resulted in prejudice. 14 SeeRemmer v. United States, 347 U.S. 227, 229-30 (1954); Leish-
er, 41 F.3d at 757 ("[W]here a proper request [for a hearing]
is made, questioning of the jury foreman alone will likely not
be sufficient to ensure that any prejudice has been dis-
pelled."); United States v. Butler, 822 F.2d 1191, 1196 (D.C.
Cir. 1987) ("[T]he proper procedure for the judge confronted
with an allegedly improper juror contact is to hold a hearing
'to determine the effect of such occurrences when they hap-
pen.' "). The same is true when a juror is shown to have lied
during voir dire. See United States v. Boney, 977 F.2d 624,
634 (D.C. Cir. 1992). Nevertheless, a hearing was not re-
quired in this case.
The issue here is not whether improper contact or a lie
during voir dire resulted in prejudice but whether such a
contact or lie occurred at all. A hearing is not always
required to determine the factual underpinning of a juror
misconduct claim, as opposed to the prejudicial effect of
uncontested misconduct.
Instead, the court has broad discretion in deciding how to
investigate such a claim. Among the factors it should consid-
er are the strength and seriousness of the allegations. See
United States v. Caldwell, 776 F.2d 989, 998-99 (11th Cir.
1985). Here, the allegation of an improper communication
was countered by substantial evidence that no such communi-
cation had occurred; the court was not required to pursue the
matter any further by holding a hearing. It found, based on
the affidavits before it, that no conversation with any of the
Jackson sisters had occurred and we defer to that finding.
See Hobson, 737 F.2d at 49.
As to juror no. 10's alleged lie during voir dire, the
appellants fail to identify any question that juror no. 10
answered dishonestly even assuming that she knew one of
Jackson's sisters. The best appellants can do is point to thequestions regarding whether the jurors, their close friends or
relatives frequented the First Street and Rhode Island Ave-
nue area and whether the jurors knew any of the parties or
potential witnesses. Neither of the questions called for juror
no. 10 to reveal that she was acquainted with one of Jackson's
sisters (again assuming she was so acquainted). With no
evidence of dishonesty, there was no need for the district
court to examine the issue further. See McDonough Power
Equip., Inc. v. Greenwood, 464 U.S. 548, 556 (1984) (showing
of dishonesty necessary precursor to investigation of preju-
dice); United States v. North, 910 F.2d 843, 904 (D.C. Cir.
1990) (same), cert. denied, 500 U.S. 941 (1991).
Moreover, the defendants' decision not to take advantage of
the opportunity to talk to juror no. 10 undermines their
demand for a hearing. Although the defendants argue that
the court was obliged to hold a hearing to get to the bottom
of the matter, they themselves were not willing to take the
easiest step toward determining whether juror no. 10 had
improper contacts with one of Jackson's sisters. As to the
terms imposed by the court, 15 the defendants could have
proceeded with the interview and preserved their objections
for appeal.
B. Sentencing Issues (White)
White argues that the district court erred in sentencing
him on both his drug conspiracy conviction (21 U.S.C. § 846)
and his RICO conspiracy conviction (18 U.S.C. 1962(d)). 16 He
contends that the drug conspiracy is a lesser included offense
of the RICO conspiracy and the district court therefore was
barred from imposing cumulative sentences for the two of-
fenses. 17 Although we agree that the drug conspiracy is alesser included offense of the RICO conspiracy, cumulative
punishments nevertheless are permissible because the Con-
gress so intended.
1.Standard of Review
As White and the government agree, this question is one of
law that we review de novo. See United States v. Doe, 934
F.2d 353, 356 (D.C. Cir.), cert. denied, 502 U.S. 896 (1991).
2.Permissibility of Separate Sentences
Under the test enunciated in Blockburger v. United States,
284 U.S. 299, 304 (1932), a defendant convicted of violating
two separate criminal provisions will not be punished twice
for the same offense in violation of the double jeopardy clause
of the fifth amendment if "each provision requires proof of a
fact which the other does not." See also Rutledge v. United
States, 116 S. Ct. 1241, 1245 (1996) (same). White concedes
that section 1962(d) 18 requires proof of facts ( e.g., the exis-
tence of an enterprise) not required for a conviction under
section 846 19 but argues that the converse is not true. In
White's view, all facts that must be proved to establish asection 846 conspiracy must also be proved to establish a
RICO conspiracy "through drug trafficking," White Br. 28,
and the former therefore is a lesser included offense of the
latter. The government responds that section 846 should be
compared to RICO on its face rather than as applied in a
particular case. Because drug trafficking is only one of the
many felonies that can form the basis of a RICO conspiracy,
the government contends that a drug conspiracy need not be
proved to establish (and therefore is not a lesser included
offense of) a RICO conspiracy. 20
The government is correct that under the Blockburger test
we examine each relevant statute on its face. In United
States v. Coachman, 727 F.2d 1293 (D.C. Cir. 1984), in
affirming consecutive sentences for theft and for making false
claims arising from the same transactions, we observed that
the Supreme Court "has stated unqualifiedly that 'application
of the [ Blockburger ] test focuses on the statutory elements of
the offense.' " Id. at 1301 (quoting Iannelli v. United States,
420 U.S. 770, 785 n.17 (1975)). We therefore rejected the
argument that, in applying the Blockburger test, the court
"should look, not to the statutorily-specified elements of theoffenses, but rather to the facts of the case as alleged in the
indictment and established by the evidence." Coachman, 727
F.2d at 1301. While the government is correct that each
statute should be examined on its face, the question remains
how to read a statute listing several alternative sub-offenses.
The Supreme Court answered this question in Whalen v.
United States, 445 U.S. 684 (1980), holding that cumulative
sentences could not be imposed for rape and felony murder if
rape is the felony at issue. Although the felony murder
statute "proscribe[d] the killing of another person in the
course of committing rape or robbery or kidnaping or arson,
etc.," the Court characterized the homicide offense not as
felony murder but as "killing in the course of a rape." Id. at
694. The Court explained that it was not looking "to the facts
alleged in a particular indictment" and acknowledged that
rape is not always a lesser included offense of felony mur-
der_for example, if the felony is robbery. Id. at 694 & n.8.
Nevertheless, it found determinative that "[i]n the present
case ... proof of rape is a necessary element of proof of the
felony murder." Id. at 694. An offense thus constitutes a
lesser included offense even if it overlaps with only one of
several offenses listed in the statute criminalizing the greater
offense. This result makes sense. A statute criminalizing
several types of felony murder, for example, is functionally
equivalent to several statutes each criminalizing a single type
of felony murder.
As to White's claim, it matters not that drug trafficking is
only one of several listed felonies that can form the basis of a
RICO conviction. Because it is the predicate felony at issue
in this case, the RICO statute should be read to exclude the
other possible predicate felonies. See United States v. Krag-
ness, 830 F.2d 842, 863-64 (8th Cir. 1987). Reading RICO in
this way, we believe there was no fact required to prove the
drug conspiracy that was not also required to prove the RICO
conspiracy. Accordingly, just as rape was a lesser included
offense of felony murder in Whalen, so the drug conspiracy is
a lesser included offense of the RICO conspiracy here.
The story, however, does not end there. Even if one crime
is a lesser included offense of another, punishments may be
imposed for both "if Congress intended that they be im-
posed." United States v. Baker, 63 F.3d 1478, 1494 (9th Cir.
1995), cert. denied, 116 S. Ct. 824, 921 (1996); see also Garrett
v. United States, 471 U.S. 773, 779 (1985) ("[T]he Blockburger
presumption must of course yield to a plainly expressed
contrary view on the part of Congress."); United States v.
Crosby, 20 F.3d 480, 483-84 n.9 (D.C. Cir. 1994), cert. denied,
115 S. Ct. 1431 (1995), 513 U.S. 883 (1994). As a number of
circuits have recognized, RICO is intended to supplement,
rather than replace, existing criminal provisions. Baker, 63
F.3d at 149; United States v. Deshaw, 974 F.2d 667, 671-72
(5th Cir. 1992); Kragness, 830 F.2d at 864. The RICO
statute itself provides that "nothing in [RICO] shall super-
sede any provision of Federal ... law imposing criminal
penalties ... in addition to those provided for [here]." Orga-
nized Crime Control Act of 1970, Pub. L. No. 91-452,
§ 904(b), 84 Stat. 922, 947 (1970). Instead, "separate statutes
set forth the [drug and RICO conspiracy offenses], and are
intended to deter two different kinds of activity, i.e., conspira-
cy to engage in racketeering as opposed to conspiracy to
violate narcotics laws." Deshaw, 974 F.2d at 672. As a
result, the circuits that have held drug conspiracies to be
lesser included offenses of RICO conspiracies or have not
resolved the issue nevertheless allow cumulative sentences to
stand on the ground that the Congress "intended to permit,
and perhaps sought to encourage, the imposition of cumula-
tive sentences for RICO offenses and the underlying crimes."
Kragness, 830 F.2d at 864; see also Deshaw, 974 F.2d at 672.
We likewise conclude that, although the drug conspiracy is a
lesser included offense of the RICO conspiracy, cumulative
punishments are authorized.
The remaining sentencing issues raised by White, Hutchin-
son and Hughes do not merit discussion.
Footnote: 1Judge Williams authored sections II.A, II.B, and II.C on the
admission of out-of-court statements, joint trial, and claims based on
timing of disclosure of witnesses and impeachment material. Judge
Tatel authored section I and sections II.D, II.E, II.F, and II.G on
limits on cross-examination, admission of audiotapes, testimony of
Detective Rawls, and proof of age.
Footnote: 2The government attributed the murder only to White, Hughes
and Ballard. Because Ballard pled guilty in the middle of trial, it
might seem that the back-up "clear and convincing" finding as to
White and Hughes would moot the standard of proof issue. But
defendants challenge the court's finding on a factual basis, and it is
appropriate for us, in conducting that review, to be clear on the
standard that the district court was to apply. Our review of the
district court's factual finding, of course, is for clear error. Cf.
United States v. Lewis, 921 F.2d 1294, 1301 (D.C. Cir. 1990)
(holding that "[b]ecause of the fact-bound nature of the inquiry,"
determination of voluntariness of consent to search is reviewed for
clear error).
Footnote: 3To the extent that Thevis endorses defendants' position, we
disagree. See Thevis, 665 F.2d at 633 n.17 (observing that even
where defendant forfeits confrontation rights, lack of reliability may
require exclusion under Fed. R. Evid. 403 or constitutional due
process).
Footnote: 4Evidently the nickname of an unindicted person named Domani
Colvin.
Footnote: 5Hicks adopts White's argument regarding “the existence of a
RICO enterprise.” Hicks Br. 19.
Footnote: 6While many (but not all) of the indicia of the First Street Crew's
organization are also part of its pattern of racketeering activity,
evidence of a pattern of racketeering activity can establish the
existence of an enterprise as well. See Perholtz, 842 F.2d at 343.
Footnote: 7As to the enterprise element, the district court instructed the
jury as follows:
As used in these instructions, the term enterprise includes a
group of persons associated in fact, even though their association
is not recognized as a legal entity, corporation or partnership.
The group or association of persons can be an enterprise if these
individuals have joined together for the purpose of engaging in a
common course of conduct over a period of time. Such an
association of persons may be established by evidence showing an
ongoing organization, formal or informal, and by evidence that
the individuals making up the association functioned as a continu-
ing unit. Such an association of individuals may retain its status
as an enterprise even though the membership of the association
changed by the addition or loss of individuals during the course of
its existence.
Tr. 1/28/94 at 48-49. The court instructed on the pattern of
racketeering activity as follows:
The RICO statute goes on to require proof by the government
of a pattern of racketeering activity. In order to establish a
pattern of racketeering activity as alleged in the RICO counts of
the indictment, the government must prove beyond a reasonable
doubt, one, that at least two acts of racketeering as detailed in
count five of the indictment were committed within ten years of
each other after October 15, 1970. The government must prove
beyond a reasonable doubt every element of the offense that
constitutes the racketeering act. Two, that the racketeering acts
had the same or similar purposes, results, participants, victims or
methods of commission or were otherwise interrelated by distin-
guishing characteristics and were not isolated events. Three,
that the racketeering acts constitute a threat of continued activi-
ty. This may be established when the evidence shows that the
racketeering acts were part of a long-term association that exist-
ed for criminal purposes.
Id. at 50-51.
Footnote: 8The district court instructed the jury with regard to the RICO
conspiracy that "[t]he evidence need not show any particular degree
of effect on interstate commerce." Tr. 1/28/94 at 50.
Footnote: 9Hutchinson separately briefed the same issues, adding only the
uncontested and irrelevant point that some of the evidence sup-
ported the defense's multiple conspiracy and buyer-seller theories.
Footnote: 10See supra section III.H.1.
Footnote: 11The government concedes that a buyer-seller relationship does
not constitute a conspiracy, Gov't Br. 170; see also United States v.
Morris, 836 F.2d 1371, 1374 (D.C. Cir. 1988), and the appellants do
not dispute that such a relationship may combine with other evi-
dence to prove knowing participation in a conspiracy, see United
States v. Baylor, 97 F.3d 542, 547 (D.C. Cir. 1996). The parties
thus agree on the applicable law and dispute only the phrasing and
balance of the instruction.
Footnote: 12The appellants also argue more directly that the alleged contact
and statements deprived them of their right to an impartial jury.
Appellants' Joint Br. 52-57. As they recognize, however, the
principal question before us is whether a hearing was required; the
hearing, if necessary, would decide the effect of any misconduct on
the trial. Appellants' Joint Br. 55 (acknowledging that trial court
assesses potential juror bias); see also United States v. Williams,
822 F.2d 1174, 1189 (D.C. Cir. 1987) ("The trial court obviously is
the tribunal best qualified to weigh the relevant factors [regarding
juror misconduct] and draw the conclusion appropriate [sic]."). We
can examine (and have done so) the effect of a juror's failure to
answer a question honestly during voir dire. See, e.g., United
States v. Williams-Davis, 90 F.3d 490, 503-04 (D.C. Cir. 1996), cert.
denied, 117 S. Ct. 986 & 988 (1997). But the appellants do not ask
us to do so in this case. Appellants' Joint Br. 59 (arguing only for
district court hearing on voir dire issue).
Footnote: 13Although the defendants' new trial motion did not address the
conduct of juror no. 10 during voir dire, the motion asked generally
for a hearing to investigate juror misconduct. J.A. Vol. II at 556.
In addition, their reply to the government's opposition to the motion
raised the voir dire issue and asked for a hearing on that ground,
among others. Id. at 613-14. The point thus was preserved for
appeal.
Footnote: 14The factors to be considered in determining prejudice include
the nature and length of the improper contact, the possibility of
removing the taint with a limiting instruction and the impact both
on the juror in question and on the jury. Williams, 822 F.2d at
1188-89; see also Leisher, 41 F.3d at 756.
Footnote: 15Only one defense counsel (on behalf of all defendants) was
allowed to speak to juror no. 10, who was to be informed that she
could decline to be interviewed.
Footnote: 16This argument also applies to Hicks, who has adopted his co-
appellants' arguments to the extent they apply to him. Hicks Br.
21.
Footnote: 17The sentences of incarceration for the drug conspiracy and the
RICO conspiracy run concurrently but each carries a $50 special
assessment.
Footnote: 18Section 1962(d) makes it "unlawful for any person to conspire
to violate any of the provisions of subsection (a), (b), or (c) of this
section." 18 U.S.C. § 1962(d). Section 1962(c) provides:
It shall be unlawful for any person employed by or associated
with any enterprise engaged in, or the activities of which affect,
interstate or foreign commerce, to conduct or participate, di-
rectly or indirectly, in the conduct of such enterprise's affairs
through a pattern of racketeering activity or collection of
unlawful debt.
Id. § 1962(c). "Racketeering activity" includes a variety of felonies,
including "dealing in a controlled substance or listed chemical"
punishable under state or federal law. Id. § 1961(1)(A), (D).
Footnote: 19Section 846 provides:
Any person who attempts or conspires to commit any offense
defined in this subchapter shall be subject to the same penal-
ties as those prescribed for the offense, the commission of
which was the object of the attempt or conspiracy.
21 U.S.C. § 846.
Footnote: 20Our sister circuits have split over whether a drug conspiracy is
a lesser included offense of a RICO conspiracy. Compare United
States v. Kragness, 830 F.2d 842, 864 (8th Cir. 1987) ("[P]roof of the
RICO conspiracy in fact rested upon proof of the drug conspiracies,
and not upon proof of an agreement that some other predicate
offenses would be committed.") and United States v. Johnson, 911
F.2d 1394, 1398 (10th Cir. 1990) with United States v. Thomas, 757
F.2d 1359, 1371 (2d Cir. 1985) ("[A] RICO conspiracy charge is
satisfied by proof of an agreement to commit a felony, no proof of
conspiracy to commit narcotics violations is necessary."), cert. de-
nied, 479 U.S. 818 (1986), 474 U.S. 819 (1985), and United States v.
Mitchell, 777 F.2d 248, 264 (5th Cir.1985) (same), cert. denied, 476
U.S. 1184 (1986), 475 U.S. 1096 (1986).